Preview
26
MILES B. COOPER, SBN209085
EMISON HULLVERSON LLP
1005 Sansome Street, Suite 330
San Francisco, California 94111
Telephone: 415-434-2111
Facsimile: 415-434-2112
miles@emisonhullverson.com
ATTORNEYS FOR PLAINTIFFS
NATHAN MARSHALL and
ALEX MARSHALL
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
AUG 07 2014
Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
NATHAN MARSHALL and ALEX
MARSHALL, individually and as successors in.
interest to decedents DENNIS T. MARSHALL
and KAREN MARSHALL,
Plaintiffs,
v.
DESOTO CAB COMPANY, INC., FAEGH
BEHBAHANIL, SELBY AND HUDSON
CORPORATION, and DOES 1-20, inclusive,
Defendants.
CASE NO, CGC-12-521356
PLAINTIFFS THE MARSHALLS’
REQUEST THAT THE COURT NOT
CONSIDER PLAINTIFFS’ EXHIBIT 18
AND REFERENCES TO IT IN DENYING
DEFENDANT SELBY AND HUDSON’S
MOTION FOR SUMMARY JUDGMENT
OR IN THE ALTERNATIVE REQUEST
FOR 437c(h) CONTINUANCE
EXHIBITS A,B AND 1 -10
Date: August 12, 2014
Time: 9:30 am.
Judge: Hon. Ernest H. Goldsmith
Case Filed: June 5, 2012
Trial Date: October 6, 2014
-l-
PLAINTIFFS THE MARSHALLS* REQUEST THAT THE COURT NOT CONSIDER PLAINTIFFS” EXHIBIT
18 AND REFERENCES TO IT IN DENYING DEFENDANT SELBY AND HUDSON’S MOTION FOR,
SUMMARY JUDGMENT OR IN THE ALTERNATIVE REQUEST FOR 437c(h}) CONTINUANCE
EXHIBITSExhibit AKERN, NODA, DEVINE & SEGAL
A LAW CORPORATION
FOIL? A, SEGAL 1388 SUTTER STREET, SUITE 600 LOS ANGELES OFFICE
Direct Line: (415) 426-3900 SAN FRANCISCO, CA 94109 18501 SOPHIA LANE
Email: phil@kndslaweorn TARZANA, CA 91356
/ TELEPHONE: (415) 474-1900 TELEPHONE: (848) 783-1198
* Also adtnitted in FL & TX FACSIMILE: (418) 474-0302 TAEBHONE: (84 »
REPLY TO SAN FRANCISCO OFFICE
July 30, 2014
SENT VIA FIRST CLASS MAIL AND FACSIMILE (425.434.2112)
Miles B. Cooper, Esq.
EMISON HULLVERSON
1005 Sansome Street, Suite 330
San Francisco, CA 94111
Re: = MARSHALL v. NEw DeSoto Can
San Francisco Superior Court Case Na.: CGC-12-521356
DIA: 06/14/10
Our File No.: MERCU 861
Dear Mr, Cooper:
lam writing in reference to the handwritten memo authored by Cindy Ward on DeSoto Cab Coop
letterhead which represents a privileged discussion that occurred during a June 17, 2010 conference
call between several board members of New DeSoto Cab Cooperative, Inc. and attorneys Barry
Wester, Ed Watson, and Tim Watson.
This memo was inadvertently disclosed during the deposition of Hansu Kim by our office. My
associate Daniel Balich was unaware that the memo falls under the attorney-client privilege and
attomey work product when he prepared the deposition production documents, Selby & Hudson
Corporation was not a party at the time of the inadvertent disclosure and Mr. Balich was unaware that
Barty Wester, Ed Watson, and Tim Watson were attorneys consulting with our clients. It was bis
impression that the memo simply represented an intercompany discussion regarding the accident and
as such he mistakenly included the document in the production. | was unaware that this memo was
produced until it was referenced during the deposition Byron Molina.
Please allow this letter to serve as our claw back request based on inadvertent disclosure of the
privileged memo. Please destroy all copies of this document and return the original, if in your
possession.
Thank you for your courtesy and cooperation.
Best regards,
PAS
ce: David King, Esq, by fax (650-342-7683) and mail
LAGLNEW\MERCURY\MARSHALL. DEN\CORRICOOPER.26 CLAW BACK REQUEST. DOC
Ta/Te 9 Sord “MHESS SINT NSdyCONNAS CHRP APSTR AUiEl pitgz/ecs2aExhibit BTeaisonMalwersom ce
August 1, 2014
Philip A. Segal, Esq.
Kern, Noda, Devine & Segal
1388 Sutter Street, Suite 600
San Francisco, CA 94109
David M. King, Esq.
Carr McLellan ingerson
Thompson & Horn
216 Park Road
Burlingame, CA 94010
Re: Marshall Nathan, et al. v. Desoto Cab Company, Inc., et al.
San Francisco Superior Court Case No. CGC-12-521356
Dear Messrs. Segal .and King:
I'm responding to Mr. Segal’s July 30, 2014 letter and Mr. King’s July 31, 2014 regarding
the Cindy Ward Memo used in plaintiffs’ opposition to summary judgment.
The history of the Cindy Ward memo in this matter starts well before the documents
produced for Hansu Kim's deposition in 2013.
DeSote initially provided documentation to the CHP shortly after this June 2010 incident.
The memo was given to the CHP at that time — four years ago.
Over three years ago, on February 21, 2011, Mr. Segal, DeSota's counsel wrote a letter
to Christine Spagnoli, plaintiffs’ prior counsel, confirming that there would be an
inspection of the burned cab, held by the CHP as evidence, on March 28, 2011. This is
attached as Exhibit 1. Prior to the inspection, Mercury Insurance, the insurance carrier for
DeSoto, obtained a copy of the documents DeSoto provided to the CHP. These were
provided to Mr. Segal. The documents were bates-numbered 1-861. The memo at issue
was part of the CHP documents. lt is bates-numbered 566. A copy of the memo bates-
stamped 566 is attached as Exhibit 2.
At the March 28, 2011 inspection, DeSoto’s counsel provided to plaintiffs’ counsel.a copy
of a disk with the documents DeSoto provided to the CHP. There was no apparent cover
letter with the disk. A copy of the disk itself is attached as Exhibit 3. The disk contained
an 861-page pdf, apparently created on March 24, 2011, titled "Mercu 861 with Number
3-24-2011.” A screenshot of this is attached as. Exhibit 4. A look back at Exhibit 1, Mr.
Segal's February 21, 2011 demonstrates that Mercu 861 Is Mr. Segal’s interna! case
1609 SANSOME STREET, SUITE 296
SAN FRANDISCO, CA Bait!
¥ iB 484 gibt
& 448 434 2112
EMISONHMULLYERSON.COMnumber, demonstrating that the document production came from his office.
After this case was filed, DeSoto, represented by Mr. Segal, sent requests for production
to plaintiffs. Plaintiffs served responses served in August 2012 and documents were
served a few weeks later in September 2012. Plaintiffs, in an effort to be thorough and
because the documents were responsive, reproduced the DeSote documents Mercury
obtained from the CHP. This included the memo, which was bates-stamped as part of the
Marshalls’ production as Marshali000874. One can see portions of Mercury's original
bates-number 566 under the new stamp. A copy of Marshall000874 bates-stamped
memo is attached as Exhibit 5.
Defendant DeSoto has had plaintiffs’ production for almost two years, and no doubt
reviewed the documents when they first arrived and when preparing for Alex Marshall's
deposition in Junie 2013, over a year ago.
Defendant DeSoto never raised an issue related to the memo in the two years since
plaintiffs produced defendant Desoto’s own memo back to defendant DeSoto.
in June 2013, Hansu Kim was deposed. As part of the preparation for deposition,
plaintiffs’ counsel pre-numbered 85 exhibits to use at the deposition. Rather than incur
the cost associated with attaching all exhibits to the transcript, an exhibit binder with the
exhibits was provided to Mr. Segal. The memo was Exhibit 70 in the binder.
Defendant DeSoto did not object to the memo at this time, either.
itis plaintiffs’ counsel's understanding that DeSoto provided a copy of the entire file,
including the Kim exhibit binder and document productions with the merno contained in
three different places, to Selby's counsel when Selby was added to the litigation.
Selby’s counsel did not raise a coricern about the memo when it received a copy of
DeSoto’s file.
In early July 2014, two years after plaintiffs produced DeSoto’s own document to DeSote,
and four years after it was given to the CHP, Selby’s counsel recognized the import of the
DeSoto. document and its damning references to Selby at the depositions of Byron Molina
and Rafael Garcia.
Selby’s counsel wrote a letter on July 14, 2014. It was directed to. both plaintiffs’ counsel
and Mr. Segal, DeSoto's counsel. It said:
“lam not certain how this document found its way into one or both of your
hands, but it should not have been produced as it is a privileged document
protected from disclosure by the attorney-client privilege. Demand is hereby
made that all copies of this document.be destroyed, and the original, if itis in
your possession, must be returned immediately to defense counsel.”This certainly seems aimed at both Mr. Cooper and Mr. Segal with the implication that
neither should have the DeSoto document. The letter is attached as Exhibit 6.
On July 16, 2014, plaintiffs’ counsel called Selby’s counsel. Plaintiffs’ counsel stated his.
belief that the document was not privileged, that it had been around for quite some time,
and that if there were. an issue related to it, plaintiffs’ counsel expected Mr. Segal would
raise the issue.
On July 17, 2074, plaintiffs’ counsel circulated a stipulation to continue the trial and seek
a single assignment judge so that Seiby, if it chose, could seek’a ruling on the DeSoto
document that Selby believed was privileged. Plaintiffs’ counsel emailed the stipulation
on July 17, 2014 for an ex parte application to be heard the following Tuesday, July 22.
He did not get a response. He sent a follow-up ernail on July 18. He got no response to
this email either. The emails are attached as Exhibit 7.
On Monday, July 21, hearing nothing in respanse to the stipulation, plaintiffs’ counsel
emailed to state that there would not be an ex parte appearance on July 22, This email is
attached as Exhibit 8. It appeared the continuance to have the issue addressed was not a
concern for defendants.
Plaintiffs’ opposition to summary judgment was due July 29, 2014, and was timely filed.
Plaintiffs’ counsel received nothing from defense counsel until July 30, 2014.
On July 30, 2074, plaintiffs’ counsel received a letter from Mr. Segal. It stated:
My associate Daniel Balich was unaware that the memo falis under the
attorney-client work privilege and attorney work product when he prepared
the deposition production documents. Selby & Hudson Corporation was not a
party at the time of the inadvertent disclosure and Mr. Balich was unaware
that Barry Wester, Ed Watson, and Tim Watson were attorneys. consulting
with our clients. It was his impression that the memo simply represented an
intercompany discussion regarding the accident and as such he mistakenly
included the document in the production.
Exhibit 9, July 30, 2014 letter from Mr. Segal.
There's a problem though. DeSoto produced 379 pages in March 2013 in response to
requests for production. DeSoto produced an additional 459 pages at Hansu Kim's
deposition. While there were some duplicates, DeSoto chose not to reproduce the CHP
documents it originally produced to plaintiffs’ counsel in 2011 and did not reproduce the
documents plaintiffs produced in their production responses.
As 4 result, the memo was not in the production responses Mr. Balich prepared.
The document itself is a one page piece of paper on DeSoto Cab Co-op stationary. It
does not say, “Confidential,” “Attorney-work product,” or have any other reference toindicate that the document is privileged in any way. It does reference a conference call
but gives no indication beyond a notation about a conference call — whether the call
happened in the past, will happen in the future, or what have you.
On its face, it is not a privileged document. But let's assume, for the sake of argument,
that it was at one time.
Except as otherwise provided in this section, the right of any person to claim a
privilege provided by Section 954 (lawyer-client privilege) . . . is waived with
respect to.a communication protected by the privilege if any holder of the
privilege, without coercion, has disclosed a significant part of the
communication or has consented to disclosure made by anyone. Consent to
disclosure is manifested by any statement or other conduct of the holder of
the privilege indicating consent to the disclosure, including failure to claim the
privilege in any proceeding in which the holder has the legal standing and
opportunity to claim the privilege.
Cal. Evid. Code § 912(a}
In this case, the memo was advertently produced by DeSoto to. the CHP, the CHP to
Mercury, Mercury to DeSoto's counsel, DeSoto's counsel to plaintiffs’ counsel, and finally
from plaintiffs’ counsel back to DeSoto’s counsel —.both in production responses and at
Hansu Kim's deposition.
Any privilege, if it once existed, was long ago waived.
For strategic reasons, Selby and DeSoto’s counsel chose not to stipulate to continue the
trial when plaintiffs’ counsel suggested it as a potential way to address Selby’s counsel's
concern about the DeSoto memo. Plaintiffs’ counsel can only surmise it might have been
because they knew he writes his own material and had to oppose summary judgment
while simultaneously preparing for an August 18, 2014 trial against a partner of Mr.
Segal’s in another case. They arguably hoped the situation would hoebbie the strength of
plaintiffs’ counsel’s opposition.
Selby’s counsel has raised the specter of a motion to disqualify in regard to this issue.
Selby’s counsel has also indicated it will call plaintiffs’ counsel's actions into question in
its reply brief. Selby should do whatit thinks appropriate. But It should be sure to be
factually correct when it traces the path of the document in dispute.
Very truly yours,
Vdd TS, Coo pin
Miles B. CooperExhibit 1Le
Kern, NODA, DEVINE & SEGAL
A LAW CORPORATION
C 1388 SUTTER STREEY, SUITE G00: LOS ANGELES OFFICE
towne’ KERN SAN FRANCISCO, CA 94109° TA501 SOPHIA LANE
JOHN A. NODA TARZANA, CA 97256
CREP DEVIN S14 74-7900 oem:
Pr SP. cal 5) APSF TELEPHONE: (G38! 283-4198.
MICHAEL G. THOMAS:
KURTD, MILLER REPLY 709 SAN. FRANCISCO. OFFICE
PALL £ van DY
TIFFANY DAY
* Also admitted in FL & 1X February 22, 201 1
VIA FACSIMILE (310.576.1220) AND FIRST CLASS MAIL
Ms. Christine Spagnoli
Greene, Broillett & Wheeler
100 Wilshire Boulevard, 21" floor
Santa Monica, CA 90407
&
. ara . Ag *
Re: Marshall.den v. New DeSoto Cab & Sey
San Francisco Superior Court Case No.: Not Filed Yet o uk CG
DIA: O6A 4/10. “A a, wh
Our File No. MERCU 861 ie
Dear Ms. Spagnoli:
This will confirm the vehicle inspection is scheduled as follows:
VERICLE INSPECTION
DATE: March 28, 2011
Time: 9:00.A.M.
Location: Atlas Tow
61 Napoleon St.
San Franciseo, CA 94.103
TELE: 415.673.4242
Please find enclosed a copy of the letter we sent to.Lt. Dane Lobb. This letter was also sent via e-mail
to Lt. Lobb. Our expert will be present and available at the vehicle inspection.
Look forward to. meeting you.on March 28, 2011.
Best regards.
PAS/cm
Wkern\data\Ch NEWIMERCUR ViMARSHALL DENICORR spagnoli. 16 vel ingp.docKERN, Nopa, DEVINE & SEGAL
A LAW CORPORATION
LAWRENCE £, KERN. 1486 SUTTER STREET SUITE G0 LOS ANGELES OFRICE
nr SAN FRANCHISOR, CA S810 JBS01 SOPMEA LANE
JORIS A. NOGA —— TARZANA, CA 91356
JOSEPH M. DEVERE TELEPHONE: (41.5) 474-1900. ne
PHIIPA. SEGAL FACSIMILE: (475).474.0302 TELEPHONE: (816) 783-1198
MICHAEL .G. THOMAS:
KURT D. MILLER REPLY 10 SAN FRANCISCO OFFICE
PAUL Bevan OYK
THEEANY DAY
* Also adeninted in FL& TX
February.22, 2011
VIA PMAIL AT dlobb@ehp.ca.eov AND First cLassMan, @@PY TO CALENDAR
San Francisco CHP
455 8" St, Vem
San Francisco, CA 94103 Ny FEB 2420
Lt. Dane Lobb (0) IsCl SEH)
1
| Greene, Broillet et
Re: Marsyatiy. New DeSoro Cap
San Francisco Superior
Court Case No.: Not Yet Filed
Clairnants: Nathan Marshall & Alex Marshall. sons of deceased
passengers Dennis Marshall and Karen Marshall
Our Client: New DeSoto Cab Cooperative Company, Inc.
Vehicle Info: New Desoto Cab No. 2111, 2003- Dodge Intrepid.
Vin No: 2B3HD46RX31H563580
Vehicle Location: CHP Impound Lot at
Atlas Tow
61 Napoleon St.
San Francisco, CA 94103
415.673, 4242
DiA: 06/14/10
Our File No.: MERCU 861
Dear Lt. Lobb,
This will confirm that the inspection of the vehicle described above involved in the June
14, 2010 accident involving DeSoto Cab taxi driver, Faegh Behbahani is scheduled as
follows:
VEHICLE INSPECTION
2; March.28, 2011
9:00 A.M.
LOCATION: Atlas Tow
61 Napoleon St.
San Francisco, CA 94103
TELE 415.673 4242
\\kernWata\CLREVWAMERCUR YWARSHALL DEN CORRILOBB-CHP.OL docMarshall v. New DeSoto Cab
February 22,2011
Page 2 of 2
We are sending you this letter via mail and.c-mail to dlobh@chp.ca.gov.
Pursuant to our recent conversation, you advised that-we could inspect the vehicle at any
time.
Please confirm the inspection scheduled for March 28, 20117 at 9:00 A.M.
Please be advised that attorneys and experts for both New DeSoto Cab Cooperative
Company, Inc. and on behalf of heirs of the deceased occupants of the vehicle will be
present along with two experts.
We understand that a CHP officer will be present to supervise us at the time of the
inspection.
Please call or reply via e-mail confirming the inspection.
I thank you in advance for your anticipated courtesy and cocperation.
Best regards.
Very truly yours,
LBL Yo
i Oy &
PHILP A SEGA
PAS/cm
Cc: Christine Spagnoli
A\Kerm\data\ CLNEWWMERCUR Y MARSHALL DENICORRALOBB.CHP.O1 doc:Exhibit 2Desa
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INGERSOLL THOMPSON & HORN %
David M. King
dking@carr-meclellan.com
Professional Law Corporation
July 14, 2014
Miles B. Cooper, Esq. Philip A. Segal, Esq.
Emison Hullverson LLP Kern, Noda, Devine & Segal
1005 Sansome Street, Suite 330 1388 Sutter Street, Suite 600
San Francisco, California 94111 San Francisco, California 94109
Re: Marshall vs. Desoto Cab Company, Inc., et al.
Dear Messrs. Cooper and Segal:
At last week's deposition of Byron Molina, the witness was shown a handwritten memo on
DeSoto Cab Coop stationery, which the witness identified to have been written, in his opinion,
by Cindy Ward. After reviewing the document carefully, it is obvious that the notations on the
document (Exhibit 70) reflect a conference call which took place involving legal counsel. J am
not certain how this document found its way into one or both of your hands, but it should not
have been produced as it is a privileged document protected from disclosure by the attorney-
client privilege. Demand is hereby made that all copies of this document be destroyed, and the
original, if it is in your possession, must be returned immediately to defense counsel.
Thank you for your prompt. attention to this matter.
David M. King
DMK/cal
Enclosure
40347-0000 HiManage\5 1967274
P 650.342.9600
216 Park Road - Burlingame - California 94010 F 650.342.7685
www.carr-moctellan.comExhibit 7Miles Cooper
From: Miles Cooper
Sent: Friday, July 18, 2014 12:53 PM
To: dking@carr-mcclellan.com, "Philip Segal’
Ce: "Carol Loza'; Daniel Balich
Subject: FW: Marshail: Ex parte app to continue/single assign - stip
Attachments: Ex Parte App to Continue Trial - Stipulation.docx
Moving this up in folks’ inboxes. If we are going to attempt this on Tuesday I'll need a little time to
prepare the papers in advance ~ and an executed stip with an agreed date is the first step.
M.
From: Miles Cooper
Sent: Thursday, July 17, 2014 12:10 PM
To: dking@carr-mcclellan.com; ‘Philip Segal’; Daniel Balich
Cc: John Hullverson
Subject: Marshall: Ex parte app to continue/single assign - stip
Dave, Phil & Dan:
I spoke with Dave yesterday. For a variety of reasons, including an evidentiary issue on the Cindy
Ward memo, | think a continuance and request for single assignment is in order. Dave can attend an
ex parte hearing next Tuesday at 11 am ~ the soonest we can get it on.
I'd ask that you take a look at the stip. | selected March 9, 2014 — that’s 5 months. It allows time for
the SJ to get pushed but to keep the hearing date further away from the trial date. If that date does
not work please email everyone with 3 others within that window — the court got picky when we went
over 6 months on a continuance last year so I'd suggest no further than April 9.
M
EmisonHullverson__P
Miles B. Cooper
Emison Hullverson LLP
1005 Sansome Street, Suite 330
San Francisco, CA 94111
(415) 434-2111 (office)
(415) 606-1004 (mobile)
miles@emisonhullverson.comExhibit 8Miles Cooper
From: Miles Cooper
Sent: Monday, July 21, 2014 11:26 AM
To: "Philip Segal’; dking@carr-mcclellan.com; Daniel Balich
Ce: "Carol Loza'; Christy Marty-Holdt; John Hullverson
Subject: Marshall: Ex parte app to continue/single assignment - not going in tomorrow
All:
Since I’ve not gotten a stip back, we are not planning on going in tomorrow.
M
EmisonHullversonL_P
Miles B. Cooper
Emison Hullverson LLP
1005 Sansome Street, Suite 330
San Francisco, CA 94111
(415) 434-2111 (office)
(415) 606-1004 (mobile)
miles@emisonhullverson.comExhibit 9KERN, NODA, DEVINE & SEGAL
A LAW CORPORATION
FOIL? A, SEGAL 1388 SUTTER STREET, SUITE 600 LOS ANGELES OFFICE
Direct Line: (415) 426-3900 SAN FRANCISCO, CA 94109 18501 SOPHIA LANE
Email: phil@kndslaweorn TARZANA, CA 91356
/ TELEPHONE: (415) 474-1900 TELEPHONE: (848) 783-1198
* Also adtnitted in FL & TX FACSIMILE: (418) 474-0302 TAEBHONE: (84 »
REPLY TO SAN FRANCISCO OFFICE
July 30, 2014
SENT VIA FIRST CLASS MAIL AND FACSIMILE (425.434.2112)
Miles B. Cooper, Esq.
EMISON HULLVERSON
1005 Sansome Street, Suite 330
San Francisco, CA 94111
Re: = MARSHALL v. NEw DeSoto Can
San Francisco Superior Court Case Na.: CGC-12-521356
DIA: 06/14/10
Our File No.: MERCU 861
Dear Mr, Cooper:
lam writing in reference to the handwritten memo authored by Cindy Ward on DeSoto Cab Coop
letterhead which represents a privileged discussion that occurred during a June 17, 2010 conference
call between several board members of New DeSoto Cab Cooperative, Inc. and attorneys Barry
Wester, Ed Watson, and Tim Watson.
This memo was inadvertently disclosed during the deposition of Hansu Kim by our office. My
associate Daniel Balich was unaware that the memo falls under the attorney-client privilege and
attomey work product when he prepared the deposition production documents, Selby & Hudson
Corporation was not a party at the time of the inadvertent disclosure and Mr. Balich was unaware that
Barty Wester, Ed Watson, and Tim Watson were attorneys consulting with our clients. It was bis
impression that the memo simply represented an intercompany discussion regarding the accident and
as such he mistakenly included the document in the production. | was unaware that this memo was
produced until it was referenced during the deposition Byron Molina.
Please allow this letter to serve as our claw back request based on inadvertent disclosure of the
privileged memo. Please destroy all copies of this document and return the original, if in your
possession.
Thank you for your courtesy and cooperation.
Best regards,
PAS
ce: David King, Esq, by fax (650-342-7683) and mail
LAGLNEW\MERCURY\MARSHALL. DEN\CORRICOOPER.26 CLAW BACK REQUEST. DOC
Ta/Te 9 Sord “MHESS SINT NSdyCONNAS CHRP APSTR AUiEl pitgz/ecs2a~ Exhibit 10CARR McCLELLAN
INGERSOLL THOMPSON & HORN
Professional Law Corporation David M. King
dking@carr-meclellan.com
July 31, 2014
VIA EMAIL AND U.S. MATL
Miles B. Cooper, Esq.
Emison Hullverson LLP
1005 Sansome Street, Suite 330
San Francisco, California 94111
Re: — Marshall vs. Desoto Cab Company, Inc.
Dear Mr. Cooper:
By now I trust that you have received Philip Segal’s letter of July 30, 2014, demanding the return
of the inadvertently disclosed privileged memo.
As you know, the very first time I learned of the existence of this document was at the deposition
of Mr. Molina. The document was produced before Selby and Hudson was brought into this
matter and before my involvement in it. Following Mr. Molina’s deposition, I promptly wrote to
you, indicating my belief that the document was privileged, and demanding that it be returned to
“defense counsel.” By that, | meant that the document should be returned to Mr. Segal who was
copied on the letter.
At the time of the deposition of Mr. Molina, Philip Segal was just as surprised as me by the
document, and did not at that time understand its origins or significance.
After I sent you my letter requesting the return of the document to defense counsel, you and I
spoke over the phone at which time you expressed your belief that the demand for return of the
document should have come from Mr. Segal, counsel for Desoto. Irrespective of Mr. Segal’s
obligation to assert the privilege, it was most certainly my ethical obligation to point out to you
what probably should have been obvious to you from the face of the document — that it
referenced attorney-client communications regarding the subject accident. Indeed, the face of
the document referenced a conference call with several attorneys. It was my ethical obligation to
point out the specific nature of the document to you and request that it be returned. In fact, it
was your ethical obligation to immediately notify Mr. Segal of your receipt of the document and
its apparent privileged nature.
P 650.342.9600
216 Park Road - Burlingame + California 94010 F 650.342.7685
www.carr-mecleHan.com
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26 MILES B. COOPER, SBN209085 EMISON HULLVERSON LLP 1005 Sansome Street, Suite 330 San Francisco, California 94111 Telephone: 415-434-2111 Facsimile: 415-434-2112 miles@emisonhullverson.com ATTORNEYS FOR PLAINTIFFS NATHAN MARSHALL and ALEX MARSHALL ELECTRONICALLY FILED Superior Court of California, County of San Francisco AUG 07 2014 Clerk of the Court BY: WILLIAM TRUPEK Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO NATHAN MARSHALL and ALEX MARSHALL, individually and as successors in. interest to decedents DENNIS T. MARSHALL and KAREN MARSHALL, Plaintiffs, v. DESOTO CAB COMPANY, INC., FAEGH BEHBAHANIL, SELBY AND HUDSON CORPORATION, and DOES 1-20, inclusive, Defendants. CASE NO, CGC-12-521356 PLAINTIFFS THE MARSHALLS’ REQUEST THAT THE COURT NOT CONSIDER PLAINTIFFS’ EXHIBIT 18 AND REFERENCES TO IT IN DENYING DEFENDANT SELBY AND HUDSON’S MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE REQUEST FOR 437c(h) CONTINUANCE EXHIBITS A,B AND 1 -10 Date: August 12, 2014 Time: 9:30 am. Judge: Hon. Ernest H. Goldsmith Case Filed: June 5, 2012 Trial Date: October 6, 2014 -l- PLAINTIFFS THE MARSHALLS* REQUEST THAT THE COURT NOT CONSIDER PLAINTIFFS” EXHIBIT 18 AND REFERENCES TO IT IN DENYING DEFENDANT SELBY AND HUDSON’S MOTION FOR, SUMMARY JUDGMENT OR IN THE ALTERNATIVE REQUEST FOR 437c(h}) CONTINUANCE EXHIBITSExhibit AKERN, NODA, DEVINE & SEGAL A LAW CORPORATION FOIL? A, SEGAL 1388 SUTTER STREET, SUITE 600 LOS ANGELES OFFICE Direct Line: (415) 426-3900 SAN FRANCISCO, CA 94109 18501 SOPHIA LANE Email: phil@kndslaweorn TARZANA, CA 91356 / TELEPHONE: (415) 474-1900 TELEPHONE: (848) 783-1198 * Also adtnitted in FL & TX FACSIMILE: (418) 474-0302 TAEBHONE: (84 » REPLY TO SAN FRANCISCO OFFICE July 30, 2014 SENT VIA FIRST CLASS MAIL AND FACSIMILE (425.434.2112) Miles B. Cooper, Esq. EMISON HULLVERSON 1005 Sansome Street, Suite 330 San Francisco, CA 94111 Re: = MARSHALL v. NEw DeSoto Can San Francisco Superior Court Case Na.: CGC-12-521356 DIA: 06/14/10 Our File No.: MERCU 861 Dear Mr, Cooper: lam writing in reference to the handwritten memo authored by Cindy Ward on DeSoto Cab Coop letterhead which represents a privileged discussion that occurred during a June 17, 2010 conference call between several board members of New DeSoto Cab Cooperative, Inc. and attorneys Barry Wester, Ed Watson, and Tim Watson. This memo was inadvertently disclosed during the deposition of Hansu Kim by our office. My associate Daniel Balich was unaware that the memo falls under the attorney-client privilege and attomey work product when he prepared the deposition production documents, Selby & Hudson Corporation was not a party at the time of the inadvertent disclosure and Mr. Balich was unaware that Barty Wester, Ed Watson, and Tim Watson were attorneys consulting with our clients. It was bis impression that the memo simply represented an intercompany discussion regarding the accident and as such he mistakenly included the document in the production. | was unaware that this memo was produced until it was referenced during the deposition Byron Molina. Please allow this letter to serve as our claw back request based on inadvertent disclosure of the privileged memo. Please destroy all copies of this document and return the original, if in your possession. Thank you for your courtesy and cooperation. Best regards, PAS ce: David King, Esq, by fax (650-342-7683) and mail LAGLNEW\MERCURY\MARSHALL. DEN\CORRICOOPER.26 CLAW BACK REQUEST. DOC Ta/Te 9 Sord “MHESS SINT NSdyCONNAS CHRP APSTR AUiEl pitgz/ecs2aExhibit BTeaisonMalwersom ce August 1, 2014 Philip A. Segal, Esq. Kern, Noda, Devine & Segal 1388 Sutter Street, Suite 600 San Francisco, CA 94109 David M. King, Esq. Carr McLellan ingerson Thompson & Horn 216 Park Road Burlingame, CA 94010 Re: Marshall Nathan, et al. v. Desoto Cab Company, Inc., et al. San Francisco Superior Court Case No. CGC-12-521356 Dear Messrs. Segal .and King: I'm responding to Mr. Segal’s July 30, 2014 letter and Mr. King’s July 31, 2014 regarding the Cindy Ward Memo used in plaintiffs’ opposition to summary judgment. The history of the Cindy Ward memo in this matter starts well before the documents produced for Hansu Kim's deposition in 2013. DeSote initially provided documentation to the CHP shortly after this June 2010 incident. The memo was given to the CHP at that time — four years ago. Over three years ago, on February 21, 2011, Mr. Segal, DeSota's counsel wrote a letter to Christine Spagnoli, plaintiffs’ prior counsel, confirming that there would be an inspection of the burned cab, held by the CHP as evidence, on March 28, 2011. This is attached as Exhibit 1. Prior to the inspection, Mercury Insurance, the insurance carrier for DeSoto, obtained a copy of the documents DeSoto provided to the CHP. These were provided to Mr. Segal. The documents were bates-numbered 1-861. The memo at issue was part of the CHP documents. lt is bates-numbered 566. A copy of the memo bates- stamped 566 is attached as Exhibit 2. At the March 28, 2011 inspection, DeSoto’s counsel provided to plaintiffs’ counsel.a copy of a disk with the documents DeSoto provided to the CHP. There was no apparent cover letter with the disk. A copy of the disk itself is attached as Exhibit 3. The disk contained an 861-page pdf, apparently created on March 24, 2011, titled "Mercu 861 with Number 3-24-2011.” A screenshot of this is attached as. Exhibit 4. A look back at Exhibit 1, Mr. Segal's February 21, 2011 demonstrates that Mercu 861 Is Mr. Segal’s interna! case 1609 SANSOME STREET, SUITE 296 SAN FRANDISCO, CA Bait! ¥ iB 484 gibt & 448 434 2112 EMISONHMULLYERSON.COMnumber, demonstrating that the document production came from his office. After this case was filed, DeSoto, represented by Mr. Segal, sent requests for production to plaintiffs. Plaintiffs served responses served in August 2012 and documents were served a few weeks later in September 2012. Plaintiffs, in an effort to be thorough and because the documents were responsive, reproduced the DeSote documents Mercury obtained from the CHP. This included the memo, which was bates-stamped as part of the Marshalls’ production as Marshali000874. One can see portions of Mercury's original bates-number 566 under the new stamp. A copy of Marshall000874 bates-stamped memo is attached as Exhibit 5. Defendant DeSoto has had plaintiffs’ production for almost two years, and no doubt reviewed the documents when they first arrived and when preparing for Alex Marshall's deposition in Junie 2013, over a year ago. Defendant DeSoto never raised an issue related to the memo in the two years since plaintiffs produced defendant Desoto’s own memo back to defendant DeSoto. in June 2013, Hansu Kim was deposed. As part of the preparation for deposition, plaintiffs’ counsel pre-numbered 85 exhibits to use at the deposition. Rather than incur the cost associated with attaching all exhibits to the transcript, an exhibit binder with the exhibits was provided to Mr. Segal. The memo was Exhibit 70 in the binder. Defendant DeSoto did not object to the memo at this time, either. itis plaintiffs’ counsel's understanding that DeSoto provided a copy of the entire file, including the Kim exhibit binder and document productions with the merno contained in three different places, to Selby's counsel when Selby was added to the litigation. Selby’s counsel did not raise a coricern about the memo when it received a copy of DeSoto’s file. In early July 2014, two years after plaintiffs produced DeSoto’s own document to DeSote, and four years after it was given to the CHP, Selby’s counsel recognized the import of the DeSoto. document and its damning references to Selby at the depositions of Byron Molina and Rafael Garcia. Selby’s counsel wrote a letter on July 14, 2014. It was directed to. both plaintiffs’ counsel and Mr. Segal, DeSoto's counsel. It said: “lam not certain how this document found its way into one or both of your hands, but it should not have been produced as it is a privileged document protected from disclosure by the attorney-client privilege. Demand is hereby made that all copies of this document.be destroyed, and the original, if itis in your possession, must be returned immediately to defense counsel.”This certainly seems aimed at both Mr. Cooper and Mr. Segal with the implication that neither should have the DeSoto document. The letter is attached as Exhibit 6. On July 16, 2014, plaintiffs’ counsel called Selby’s counsel. Plaintiffs’ counsel stated his. belief that the document was not privileged, that it had been around for quite some time, and that if there were. an issue related to it, plaintiffs’ counsel expected Mr. Segal would raise the issue. On July 17, 2074, plaintiffs’ counsel circulated a stipulation to continue the trial and seek a single assignment judge so that Seiby, if it chose, could seek’a ruling on the DeSoto document that Selby believed was privileged. Plaintiffs’ counsel emailed the stipulation on July 17, 2014 for an ex parte application to be heard the following Tuesday, July 22. He did not get a response. He sent a follow-up ernail on July 18. He got no response to this email either. The emails are attached as Exhibit 7. On Monday, July 21, hearing nothing in respanse to the stipulation, plaintiffs’ counsel emailed to state that there would not be an ex parte appearance on July 22, This email is attached as Exhibit 8. It appeared the continuance to have the issue addressed was not a concern for defendants. Plaintiffs’ opposition to summary judgment was due July 29, 2014, and was timely filed. Plaintiffs’ counsel received nothing from defense counsel until July 30, 2014. On July 30, 2074, plaintiffs’ counsel received a letter from Mr. Segal. It stated: My associate Daniel Balich was unaware that the memo falis under the attorney-client work privilege and attorney work product when he prepared the deposition production documents. Selby & Hudson Corporation was not a party at the time of the inadvertent disclosure and Mr. Balich was unaware that Barry Wester, Ed Watson, and Tim Watson were attorneys. consulting with our clients. It was his impression that the memo simply represented an intercompany discussion regarding the accident and as such he mistakenly included the document in the production. Exhibit 9, July 30, 2014 letter from Mr. Segal. There's a problem though. DeSoto produced 379 pages in March 2013 in response to requests for production. DeSoto produced an additional 459 pages at Hansu Kim's deposition. While there were some duplicates, DeSoto chose not to reproduce the CHP documents it originally produced to plaintiffs’ counsel in 2011 and did not reproduce the documents plaintiffs produced in their production responses. As 4 result, the memo was not in the production responses Mr. Balich prepared. The document itself is a one page piece of paper on DeSoto Cab Co-op stationary. It does not say, “Confidential,” “Attorney-work product,” or have any other reference toindicate that the document is privileged in any way. It does reference a conference call but gives no indication beyond a notation about a conference call — whether the call happened in the past, will happen in the future, or what have you. On its face, it is not a privileged document. But let's assume, for the sake of argument, that it was at one time. Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege) . . . is waived with respect to.a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. Cal. Evid. Code § 912(a} In this case, the memo was advertently produced by DeSoto to. the CHP, the CHP to Mercury, Mercury to DeSoto's counsel, DeSoto's counsel to plaintiffs’ counsel, and finally from plaintiffs’ counsel back to DeSoto’s counsel —.both in production responses and at Hansu Kim's deposition. Any privilege, if it once existed, was long ago waived. For strategic reasons, Selby and DeSoto’s counsel chose not to stipulate to continue the trial when plaintiffs’ counsel suggested it as a potential way to address Selby’s counsel's concern about the DeSoto memo. Plaintiffs’ counsel can only surmise it might have been because they knew he writes his own material and had to oppose summary judgment while simultaneously preparing for an August 18, 2014 trial against a partner of Mr. Segal’s in another case. They arguably hoped the situation would hoebbie the strength of plaintiffs’ counsel’s opposition. Selby’s counsel has raised the specter of a motion to disqualify in regard to this issue. Selby’s counsel has also indicated it will call plaintiffs’ counsel's actions into question in its reply brief. Selby should do whatit thinks appropriate. But It should be sure to be factually correct when it traces the path of the document in dispute. Very truly yours, Vdd TS, Coo pin Miles B. CooperExhibit 1Le Kern, NODA, DEVINE & SEGAL A LAW CORPORATION C 1388 SUTTER STREEY, SUITE G00: LOS ANGELES OFFICE towne’ KERN SAN FRANCISCO, CA 94109° TA501 SOPHIA LANE JOHN A. NODA TARZANA, CA 97256 CREP DEVIN S14 74-7900 oem: Pr SP. cal 5) APSF TELEPHONE: (G38! 283-4198. MICHAEL G. THOMAS: KURTD, MILLER REPLY 709 SAN. FRANCISCO. OFFICE PALL £ van DY TIFFANY DAY * Also admitted in FL & 1X February 22, 201 1 VIA FACSIMILE (310.576.1220) AND FIRST CLASS MAIL Ms. Christine Spagnoli Greene, Broillett & Wheeler 100 Wilshire Boulevard, 21" floor Santa Monica, CA 90407 & . ara . Ag * Re: Marshall.den v. New DeSoto Cab & Sey San Francisco Superior Court Case No.: Not Filed Yet o uk CG DIA: O6A 4/10. “A a, wh Our File No. MERCU 861 ie Dear Ms. Spagnoli: This will confirm the vehicle inspection is scheduled as follows: VERICLE INSPECTION DATE: March 28, 2011 Time: 9:00.A.M. Location: Atlas Tow 61 Napoleon St. San Franciseo, CA 94.103 TELE: 415.673.4242 Please find enclosed a copy of the letter we sent to.Lt. Dane Lobb. This letter was also sent via e-mail to Lt. Lobb. Our expert will be present and available at the vehicle inspection. Look forward to. meeting you.on March 28, 2011. Best regards. PAS/cm Wkern\data\Ch NEWIMERCUR ViMARSHALL DENICORR spagnoli. 16 vel ingp.docKERN, Nopa, DEVINE & SEGAL A LAW CORPORATION LAWRENCE £, KERN. 1486 SUTTER STREET SUITE G0 LOS ANGELES OFRICE nr SAN FRANCHISOR, CA S810 JBS01 SOPMEA LANE JORIS A. NOGA —— TARZANA, CA 91356 JOSEPH M. DEVERE TELEPHONE: (41.5) 474-1900. ne PHIIPA. SEGAL FACSIMILE: (475).474.0302 TELEPHONE: (816) 783-1198 MICHAEL .G. THOMAS: KURT D. MILLER REPLY 10 SAN FRANCISCO OFFICE PAUL Bevan OYK THEEANY DAY * Also adeninted in FL& TX February.22, 2011 VIA PMAIL AT dlobb@ehp.ca.eov AND First cLassMan, @@PY TO CALENDAR San Francisco CHP 455 8" St, Vem San Francisco, CA 94103 Ny FEB 2420 Lt. Dane Lobb (0) IsCl SEH) 1 | Greene, Broillet et Re: Marsyatiy. New DeSoro Cap San Francisco Superior Court Case No.: Not Yet Filed Clairnants: Nathan Marshall & Alex Marshall. sons of deceased passengers Dennis Marshall and Karen Marshall Our Client: New DeSoto Cab Cooperative Company, Inc. Vehicle Info: New Desoto Cab No. 2111, 2003- Dodge Intrepid. Vin No: 2B3HD46RX31H563580 Vehicle Location: CHP Impound Lot at Atlas Tow 61 Napoleon St. San Francisco, CA 94103 415.673, 4242 DiA: 06/14/10 Our File No.: MERCU 861 Dear Lt. Lobb, This will confirm that the inspection of the vehicle described above involved in the June 14, 2010 accident involving DeSoto Cab taxi driver, Faegh Behbahani is scheduled as follows: VEHICLE INSPECTION 2; March.28, 2011 9:00 A.M. LOCATION: Atlas Tow 61 Napoleon St. San Francisco, CA 94103 TELE 415.673 4242 \\kernWata\CLREVWAMERCUR YWARSHALL DEN CORRILOBB-CHP.OL docMarshall v. New DeSoto Cab February 22,2011 Page 2 of 2 We are sending you this letter via mail and.c-mail to dlobh@chp.ca.gov. Pursuant to our recent conversation, you advised that-we could inspect the vehicle at any time. Please confirm the inspection scheduled for March 28, 20117 at 9:00 A.M. Please be advised that attorneys and experts for both New DeSoto Cab Cooperative Company, Inc. and on behalf of heirs of the deceased occupants of the vehicle will be present along with two experts. We understand that a CHP officer will be present to supervise us at the time of the inspection. Please call or reply via e-mail confirming the inspection. I thank you in advance for your anticipated courtesy and cocperation. Best regards. Very truly yours, LBL Yo i Oy & PHILP A SEGA PAS/cm Cc: Christine Spagnoli A\Kerm\data\ CLNEWWMERCUR Y MARSHALL DENICORRALOBB.CHP.O1 doc:Exhibit 2Desa Wh Loop 555 SELBY STREET SAN FRANCISCO, CALIFORNIA 94124 - (415) 970-1300 566Exhibit 3Erom DesotoExhibit 4Be Favorites ME Desktap. Downloads. “| Recent Pieces. Cloud Phiotes 8 ibraries, |) Dociiments ae ‘Music : © Pictures Tl Videos Gy Network a ARAM-VOSTRO AS CHRISTY-9020 — ® GRACe-s90 JA) SERIDRICK-2020 o® soHnimac ~ a MILDRED-3020 o@ MILes-oo28- @ SAMUEL-VOSTROS eee SBSSERVER. AB THED-IMAC: Sanne: . : Mee Date modified Type a Files Currently onthe Disc CD “BE Mercy 861 With Number 3-24-2011 324/001) 2B PM Adobe Acrobat Ov, 4 Files Ready to Be Wetien tothe Dise ay : (@ desktop. wy . E22O30t3 104s... Conifigtitation sett... 93758 RRS. 2Exhibit 5§55 SELBY STREET Desatag Lab Loop « SAN FRANCISCO, CALIFORNIA 94124 « (415) 970-1300 shall0008eég MarsExhibit 6CARR McCLELLAN Ras INGERSOLL THOMPSON & HORN % David M. King dking@carr-meclellan.com Professional Law Corporation July 14, 2014 Miles B. Cooper, Esq. Philip A. Segal, Esq. Emison Hullverson LLP Kern, Noda, Devine & Segal 1005 Sansome Street, Suite 330 1388 Sutter Street, Suite 600 San Francisco, California 94111 San Francisco, California 94109 Re: Marshall vs. Desoto Cab Company, Inc., et al. Dear Messrs. Cooper and Segal: At last week's deposition of Byron Molina, the witness was shown a handwritten memo on DeSoto Cab Coop stationery, which the witness identified to have been written, in his opinion, by Cindy Ward. After reviewing the document carefully, it is obvious that the notations on the document (Exhibit 70) reflect a conference call which took place involving legal counsel. J am not certain how this document found its way into one or both of your hands, but it should not have been produced as it is a privileged document protected from disclosure by the attorney- client privilege. Demand is hereby made that all copies of this document be destroyed, and the original, if it is in your possession, must be returned immediately to defense counsel. Thank you for your prompt. attention to this matter. David M. King DMK/cal Enclosure 40347-0000 HiManage\5 1967274 P 650.342.9600 216 Park Road - Burlingame - California 94010 F 650.342.7685 www.carr-moctellan.comExhibit 7Miles Cooper From: Miles Cooper Sent: Friday, July 18, 2014 12:53 PM To: dking@carr-mcclellan.com, "Philip Segal’ Ce: "Carol Loza'; Daniel Balich Subject: FW: Marshail: Ex parte app to continue/single assign - stip Attachments: Ex Parte App to Continue Trial - Stipulation.docx Moving this up in folks’ inboxes. If we are going to attempt this on Tuesday I'll need a little time to prepare the papers in advance ~ and an executed stip with an agreed date is the first step. M. From: Miles Cooper Sent: Thursday, July 17, 2014 12:10 PM To: dking@carr-mcclellan.com; ‘Philip Segal’; Daniel Balich Cc: John Hullverson Subject: Marshall: Ex parte app to continue/single assign - stip Dave, Phil & Dan: I spoke with Dave yesterday. For a variety of reasons, including an evidentiary issue on the Cindy Ward memo, | think a continuance and request for single assignment is in order. Dave can attend an ex parte hearing next Tuesday at 11 am ~ the soonest we can get it on. I'd ask that you take a look at the stip. | selected March 9, 2014 — that’s 5 months. It allows time for the SJ to get pushed but to keep the hearing date further away from the trial date. If that date does not work please email everyone with 3 others within that window — the court got picky when we went over 6 months on a continuance last year so I'd suggest no further than April 9. M EmisonHullverson__P Miles B. Cooper Emison Hullverson LLP 1005 Sansome Street, Suite 330 San Francisco, CA 94111 (415) 434-2111 (office) (415) 606-1004 (mobile) miles@emisonhullverson.comExhibit 8Miles Cooper From: Miles Cooper Sent: Monday, July 21, 2014 11:26 AM To: "Philip Segal’; dking@carr-mcclellan.com; Daniel Balich Ce: "Carol Loza'; Christy Marty-Holdt; John Hullverson Subject: Marshall: Ex parte app to continue/single assignment - not going in tomorrow All: Since I’ve not gotten a stip back, we are not planning on going in tomorrow. M EmisonHullversonL_P Miles B. Cooper Emison Hullverson LLP 1005 Sansome Street, Suite 330 San Francisco, CA 94111 (415) 434-2111 (office) (415) 606-1004 (mobile) miles@emisonhullverson.comExhibit 9KERN, NODA, DEVINE & SEGAL A LAW CORPORATION FOIL? A, SEGAL 1388 SUTTER STREET, SUITE 600 LOS ANGELES OFFICE Direct Line: (415) 426-3900 SAN FRANCISCO, CA 94109 18501 SOPHIA LANE Email: phil@kndslaweorn TARZANA, CA 91356 / TELEPHONE: (415) 474-1900 TELEPHONE: (848) 783-1198 * Also adtnitted in FL & TX FACSIMILE: (418) 474-0302 TAEBHONE: (84 » REPLY TO SAN FRANCISCO OFFICE July 30, 2014 SENT VIA FIRST CLASS MAIL AND FACSIMILE (425.434.2112) Miles B. Cooper, Esq. EMISON HULLVERSON 1005 Sansome Street, Suite 330 San Francisco, CA 94111 Re: = MARSHALL v. NEw DeSoto Can San Francisco Superior Court Case Na.: CGC-12-521356 DIA: 06/14/10 Our File No.: MERCU 861 Dear Mr, Cooper: lam writing in reference to the handwritten memo authored by Cindy Ward on DeSoto Cab Coop letterhead which represents a privileged discussion that occurred during a June 17, 2010 conference call between several board members of New DeSoto Cab Cooperative, Inc. and attorneys Barry Wester, Ed Watson, and Tim Watson. This memo was inadvertently disclosed during the deposition of Hansu Kim by our office. My associate Daniel Balich was unaware that the memo falls under the attorney-client privilege and attomey work product when he prepared the deposition production documents, Selby & Hudson Corporation was not a party at the time of the inadvertent disclosure and Mr. Balich was unaware that Barty Wester, Ed Watson, and Tim Watson were attorneys consulting with our clients. It was bis impression that the memo simply represented an intercompany discussion regarding the accident and as such he mistakenly included the document in the production. | was unaware that this memo was produced until it was referenced during the deposition Byron Molina. Please allow this letter to serve as our claw back request based on inadvertent disclosure of the privileged memo. Please destroy all copies of this document and return the original, if in your possession. Thank you for your courtesy and cooperation. Best regards, PAS ce: David King, Esq, by fax (650-342-7683) and mail LAGLNEW\MERCURY\MARSHALL. DEN\CORRICOOPER.26 CLAW BACK REQUEST. DOC Ta/Te 9 Sord “MHESS SINT NSdyCONNAS CHRP APSTR AUiEl pitgz/ecs2a~ Exhibit 10CARR McCLELLAN INGERSOLL THOMPSON & HORN Professional Law Corporation David M. King dking@carr-meclellan.com July 31, 2014 VIA EMAIL AND U.S. MATL Miles B. Cooper, Esq. Emison Hullverson LLP 1005 Sansome Street, Suite 330 San Francisco, California 94111 Re: — Marshall vs. Desoto Cab Company, Inc. Dear Mr. Cooper: By now I trust that you have received Philip Segal’s letter of July 30, 2014, demanding the return of the inadvertently disclosed privileged memo. As you know, the very first time I learned of the existence of this document was at the deposition of Mr. Molina. The document was produced before Selby and Hudson was brought into this matter and before my involvement in it. Following Mr. Molina’s deposition, I promptly wrote to you, indicating my belief that the document was privileged, and demanding that it be returned to “defense counsel.” By that, | meant that the document should be returned to Mr. Segal who was copied on the letter. At the time of the deposition of Mr. Molina, Philip Segal was just as surprised as me by the document, and did not at that time understand its origins or significance. After I sent you my letter requesting the return of the document to defense counsel, you and I spoke over the phone at which time you expressed your belief that the demand for return of the document should have come from Mr. Segal, counsel for Desoto. Irrespective of Mr. Segal’s obligation to assert the privilege, it was most certainly my ethical obligation to point out to you what probably should have been obvious to you from the face of the document — that it referenced attorney-client communications regarding the subject accident. Indeed, the face of the document referenced a conference call with several attorneys. It was my ethical obligation to point out the specific nature of the document to you and request that it be returned. In fact, it was your ethical obligation to immediately notify Mr. Segal of your receipt of the document and its apparent privileged nature. P 650.342.9600 216 Park Road - Burlingame + California 94010 F 650.342.7685 www.carr-mecleHan.com